QDR Solicitors - Claim for multiple parking charges.

Harbmeister

Client: Euro Car Parks Ltd
Claim Issued: 6/9/23
AOS received: 17/9/23

Hello All,
Seems I am back in the saddle.

This is going back to 2020 ... two charges ... five months apart.

I know the car park, I don't recall who was driving ... could be one or both me.
I know we had a blue badge at that time, and (know now) that this car park is not free for disabled parking. I am off soon to survey.

They haven't yet responded to my SAR.

I noted the detail on QDR and have a PoC - and that I should remove that part from the template defence.

My difficulties are two:
- is a multiple charges claim easier for them to win?
- as I do not fully recall the circumstances I am struggling for detail and therefore for reasoning/construction of an arguable defence

As always - help appreciated. I believe my deadline for defence submission is 4pm on 9/10.

Feel I might be fighting with one hand behind my back, but fight I will.

KeithP

Harbmeister said:

Claim Issued: 6/9/23
AOS received: 17/9/23
I believe my deadline for defence submission is 4pm on 9/10.

You are right with your Defence filing deadline but there might be something useful here...

With a Claim Issue Date of 6th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 9th October 2023 to file your Defence.

That's less than a week away. Plenty of time to produce a Defence but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

I noted the detail on QDR and have a PoC - and that I should remove that part from the template defence.

Not necessarily.

See the other Euro QDR defence written today.  We won't link it as it's right here right now and you'll see it just by glancing down page one and two of this board.

Harbmeister

Coupon-mad said:

I noted the detail on QDR and have a PoC - and that I should remove that part from the template defence.

Not necessarily.

See the other Euro QDR defence written today.  We won't link it as it's right here right now and you'll see it just by glancing down page one and two of this board.

Thank you @Coupon-mad   I have done an end-to-end read of such.

I have a separate 'Detailed Particulars of Claim' sent to me and signed and dated 21/09. This was dated the fifteenth day after Claim Issue Date.

Coupon-mad

I think that's too late (check, I think the CPRs say it must be served (arrive) within 14 days.  

You should use the template defence anyway, mentioning this and the brief facts that you do know.

Harbmeister

I now have a court date end of May and just preparing my WS for submission tomorrow.
I've been hampered by the fact that my Spouse slipped down the stairs a couple of weeks ago and has a fractured spine.

So my query relates to approach.

For recap in my Defence I have stated (truthfully) that on both occasions (same carpark) in 2020 I cannot recall the driver - it was four years ago and during various stages of lockdown hokey-cokey.

Supplementary info: the car is Motability and I am the Keeper; my daughter has the disability; myself and my Spouse are insured to drive; the carpark usage is not free for disabled badge holders - this is detailed in the signs - we had a blue badge at the time; our (adult) daughter has behavioral problems + Autism and is very difficult.

I am building from an exemplar but could use some support and encouragement.

As yet no contact from QDR with any offer and my WS is due by 4pm tomorrow.

Thanks as always.

Coupon-mad

Don't forget to start early on in the WS by saying that the detailed POC were not served in the required 14 days so the claim should be struck out, per the Civil Procedure Rules.

You can prove the dates by logging into MCOL which should have a line saying exactly when QDR advised the CNBC that the POC were served.  What does it say?  That will help, along with the fact that the detailed POC weren't even signed until day 15.

A pedantic Judge could like that point.

Harbmeister

Thanks @Coupon-mad.

That 21/9 date is only on the detailed PoC ... I will include both the MCOL and signed PoC images in my WS.

Coupon-mad

I think it is worth a shot.  Nice and easy way to kill the case within 5 minutes if the judge is with you and is a stickler for the CPRs (might be in CPR 16 I think).

Quote it. Make it easy for the judge.

Harbmeister

Hello, and thank you for your time and effort.

I'd be grateful for any reviews of my WS (based on an exemplar) - but emphasise I must submit it before 4pm on 01/05.

I am undecided whether:
- to mention that it's probable that whomever was driving used a disabled badge and would have assumed free parking
- to include photographs of signage as it looks to me that signage has been changed/renewed
- to quote Chan as I am unsure (and unqualified) to decide whether it is relevant.

PART 1/2

Euro Car Parks Limited (Claimant)

V

XXXX (Defendant)

 

Witness Statement of Defendant

 

1.     I am XXXX, XXXX and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.     In my statement, I shall refer to (Exhibits 1 - 10) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

Preliminary matter: The claim should be struck out

3.     The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

 

4.     The Defendant draws to the attention of the court that the Claim Issue Date in this case was 6th September 2023. As per Civil Procedure Rules, Particulars of Claim (PoC) must be served by the Claimant within 14 days after service of the Claim Form. The PoC was signed 21st September 2023, day 15, and arrived by post with the Defendant some days later. The Defendant believes that this breach of Civil Procedure Rule 7.4 (1) (b) constitutes the case being struck out. (See Exhibit xx-01)

5.     A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4. (See Exhibit xx-02)

 

6.     Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit xx-03)

 

7.     Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit xx-04)

 

8.     Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit xx-05)

 

9.     The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

Facts and Sequence of events

10.  It is admitted that on the material dates, I was the registered keeper of the vehicle XXXX. It is unknown who the driver of the vehicle was on the dates of the claimed PCNs, given the PCNs date back to 2020.

 

11.  The car is a Motability Hire vehicle. Multiple individuals were authorised to use the vehicle at the times of the alleged contraventions via one comprehensive insurance policy.

 

12.  I recognise the site as a car park for access to the Library and Town Centre, however, some of the individuals who were authorised to use my vehicle attend the Library and Town Centre.

 

13.  As multiple individuals were legally able to use the vehicle at the time and given the PCNs in question relate back to 2020, I am unable to nominate a driver given the length of time that has surpassed since the alleged contraventions.

 

14.  The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4. Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but dd not. Mr Smith's appeal was allowed, and Excel's claim was dismissed (See Exhibit xx-06).

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed (See Exhibit xx-07).

 

Exaggerated Claim and 'market failure' currently examined by The Government

15.  The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

16.  I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii)  a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

 

17.  The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

(iii).  interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking.

18.  This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

19.  The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:

https://www.gov.uk/government/publications/private-parking-code-of-practice

"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

20.  Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

21.  Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

22.  With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

23.  The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

24.  In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

25.  This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

26.  Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry, and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

27.  In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

 

 

Harbmeister

PART 2/2

CRA Breaches

28.  Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

29.  Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

30.  The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

31.  Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit  xx-08)

The Beavis case is against this claim

32.  The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs - (See Exhibit xx-09) - set a high bar that this Claimant has failed to reach.

33.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit xx-10) for paragraphs from ParkingEye v Beavis).

34.  In the present case, the Claimant has fallen foul of those tests. There are two main issues that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Concealed pitfall or trap:

The signage in this case required customers to enter their vehicle registration number at a kiosk inside the store. Unfortunately, this kiosk was inaccessible to me as the store was closed, rendering compliance impossible.  I also wish to highlight the presence of a sign in the parking area that mentioned clamping. The use of clamping as a penalty for parking violations was made illegal under the Protection of Freedoms Act 2012. The inclusion of such outdated language on a parking sign raises questions about the relevance and validity of the signage in the parking area.  This sign, which suggested that 'Others will be clamped,' directly contradicts current parking regulations and creates further confusion regarding the penalties associated with parking violations. It is reasonable to assume that the parking operators responsible for the signage failed to update their notices to reflect the changes in the law.  Given this discrepancy and the fact that clamping is no longer a legally permissible penalty, it further underscores the uncertainty surrounding the parking terms at the location in question. I believe this is another critical factor that should be considered by the court when evaluating the legitimacy of this case.

(ii). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

(i)               Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii)              Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iii)            Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space".

Conclusion

35.  The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

36.  The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

37.  There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

38.  With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

39.  In the matter of costs, the Defendant asks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

 

40.  Attention is drawn specifically to the (often seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

Statement of truth

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Defendant’s signature:

 

Date: XXXX